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This Week In Law 254 (Transcript)

Denise Howell: (bag and baggage.com – at dhowell) Next up on This Week in Law we have copyright librarian
Nancy Sims joining Evan Brown and me. We’ve got trolls, we’ve got copyright
trolls, we’ve got patent trolls, we’ve got geckos
fighting trolls. We are going to get away from some trollishness as well. Talk
about George W Bush as a potential warrior for their use. We’re going to talk
about windowing, and lessons to be learned in e-book contracts, also a bit of
heart bleed for you. All next on This Week in Law.

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Denise: This is This Week in Law, with Evan
Brown and Denise Howell, episode 254, recorded April 11, 2014

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Evan Brown: (InfoLawGroupLLP - @internetcases HI, Denise, great to see you on this
Friday afternoon.

Denise: Great to see you too. We have a great
guess with us this week to talk about everything new and exciting and
interesting at the intersection of technology and law. And specifically, we are
going to focus on a lot of copyright stuff today because we have an infamous
copyright librarian joining us from the University of Minnesota. We have Nancy
Sims. Hello, Nancy.

Nancy Sims: (blog.live.umn.edu/copyrightlibn - at
copyrightlibn) Hello, thanks for having me very excited to chat.

Denise: Great to have you. So Evan and I have
followed you on Twitter for some time. Give us your background for those who
haven’t yet been following you.

Nancy: Sure. I am an academic librarian. I
call myself a lawyerbrian because I’m not a law librarian. Which
is a pretty big distinction for me. I got into libraries actually
primarily out of the background and loving to play around with computers. So,
my first library jobs were all technology oriented. I did a lot of work in my
first job of helping people understand how to use software. It was at an academic
library, so how to use software in various application in their academic works, getting pictures, preparing conference posters. And things just coming up, like hey, I want to use a video clip in
my class. Well, if you rip it out of the VHS tape; we only have to worry
about copyright. If you rip it off the DVD. We have to
worry about copyright and then this thing called the DMCA. So
with all of that stuff. It kept coming up in my work, I decided to go to
law school and I finished law school in 2009 and have been working specifically
on copyright issuesever since.

Denise: That’s wonderful, well I guess we’ll start out with some copyright issues to kick off the show.

Advertisement:
display of VCR recorder, Copyright Law on label of VCR popping from recorder. Copyright law with FBI warning in the background.

Denise: (laughter) wiki-wiki-wiki, I always
love the scratching there at the end of our bumper. Let’s start off talking
about something that I first spotted in Nancy’s Twitter stream this week. And
that has to do with creative Commons licensing, and Flickr. Which
has been a big champion of creative Commons licensing over the years. And one of the best implementations of creative Commons licensing, I think. For
people to be able to choose a license, and apply it to their photos, and
communicate that their photos are license and make sure the license travels
with their photos as people go ahead and reuse them around the web. But
recently there was a little bump in the road there, Nancy can you tell us what
happened?

Nancy: Sure. Yahoo redesigned the Flickr
interface recently, and they really did top to bottom. They have been doing
some major redesigns of photo, photostreams, basically, for a while. But the
most recent thing they really, really overhauled was the individual photo page.
And one of the things that happened was that it became much less clear what
creative Commons license was being applied to any given picture so this is
actually an image from my own photo stream. (photostream:
ckr: Nancy Sims-showing photo of a milky-white kayak). I use Flickr a lot and I
used creative Commons licenses, anything that I share on Flickr is creative
common licensed. When they first did this redesign, it just showed some rights
reserved, there is also some, you can see on the
screen, they are not using standard creative common icons or which license is
chosen. This image is licensed with a creative common attribution only license
and you can’t tell that just by looking at this. Another thing that changed in the
redesign is that it’s a lot harder to figure out how to download the image. If
it’s creative commons license, I want you to be able to download it, but it’s a
lot harder to do that with this redesign. They have changed some things. They
have fixed some things based on the feedback from people who use Flickr and so
now if you click on the some rights reserved link it actually does take you to
the full creative Commons license. If you mouse over it. You can see that it’s an attribution only license so you can actually tell now
which creative Commons license is being applied just looking on the page.
(Webpage: creative commons, attribute 2 .0 generic) (returned to photo stream with white kayak) One of the other things that broke though was
the meta-data surrounding the image. There’s lots and lots of sites use the
common creative meta-data that Flickr provides for image search engines and also
some very nifty various types of applets that create attribution or citations
for you. So all of those broke when Flickr redesigned because
they dropped the standard meta-data. As I understand it, they have put
that meta-data back, but I haven’t tried any of the citation applets, yet to
see if they’re still working right.

Denise: Okay, do you know if Flickr’s own
search was impacted by this at all?

Nancy: As far as I could tell when I tried
searching through this, you could still search by creative common license.Their search doesn’t actually let you choose
all of the combinations. Their advanced search lets you search for creative
Commons licensed images, for images that are commercially releasable and I
can’t remember what the third factor is but,. So their search continued to
work, but the challenge is, you couldn’t tell what
specific license was granted on a particular image. Some of those searches
return images with different licenses and you couldn’t tell which one of the licenses
was available and you couldn’t easily download it. I will say the new redesign
still makes it very difficult to download a picture. I expect to be able to
right click on a picture and save the image file. (Webpage: ckr:
Explore/creative Commons). In order to actually get to the picture in the new redesign,
you still have to find which of the random icons on the page is for more and
then from the more page you can downloadit so is still a light bit harder to usethen I want for my creative Commons images. But there are not a whole
other photo sharing sites for it to support particularly well either, so.

Evan: Yeah, it is totally random. You have to
click on the ellipsis. And let the little three dots and then it brings up, a
lot of choices that, I don’t know if many of those choices are new in the
redesign that they certainly are another layer and a rather opaque layer at
that. Isn’t it to get to the interface where you can actually download the
images, Right, isn’t it were that little ellipsis is?

Nancy: It is, it’s
the little ellipsis that I had to click around on all of those icons before I
figured out what the download option (photo stream of white kayak). So there’s
the download/all sizes thing on the old individual image view/ all sizes as a
link you could see on the basic page, and right clicking on the image on the
basic page unless the user had chosen some options that are incompatible with
creative Commons licensing, I think. Right clicking on the
image to download that image to. So, they had disabled the right
clicking on the image.And you have to find which of the random icons
leads to all sizes, page in order to download the image. Still, even though
they’ve fixed it.

Evan: I wonder if that was intentional?To make it a little more difficult. You could see
countervailing arguments where for one thing, they may be trying to. It’s a great idea. It would still be a
mistake. If they’re doing it to restrict downloading of
creative Commons images. Because the assumption is people who license
their work through creative license commons want it to be downloaded, so that
it can be reused in the way that the license granted. But, from a more general
standpoint for images that aren’t protected by creative Commons, you wonder if
there’s an attempt here to nod towards having Flickr be a service where it is primarily
used for people to go online to look at the images not as a place to go and
find images to look at later. More as a general cloud service or a video
streaming service, would be a change in the mindset, trying to force a change
in the mindset of the users as to where the images are stored, what the
location is going to be. Seems that it could be some good
design sensibility about this in the larger sense. Do you agree or isn’t
totally bogus, all the way around?

Nancy: I think Flickr is trying to serve a
couple of audiences that may have some really incompatible interests. Flickr
for creative Commons photos has been, that was part of
their early design. I’ve met some of their early designers and early people who
were working on the interface and they were really into open technologies, and
that was part of why they built in support for creative commons license it so
early. I think with the Yahoo redesigns lately. One of the things that’s really
clear is that they are looking to be more graphically compelling, they have all
these really cool tiles, things where you can see your image and some control
of them. (Webpage: crk-explore/creative commons) This thing that you’re seeing
right now is the old-style Flickr, but the newer style. If
you click on someone’s photo stream. You’ll see it soon. Waterfall look,
it’s much more responsive design and that kind of stuff is definitely going to
appeal to photographers who might be using Flickr for less to share and more to
provide access to their work, but not necessarily full downloads of all their
work. (Webpage:ckr: Nancy Sims: photos of white
kayak). I think that’s a split of the photos that Flickr has been supporting
fairly well for a while because in the previous iteration. One option that
people could choose was to disable right clicking on their pictures. If you
want to use Flickr to share picture, but you don’t really want to use Flickr to
let people download your pictures, they had an option that already existed to
disable right clicking. You know, disabling right clicking only works as far as
the users understand how not to rat around it. So it was only a limited option,
but that’s certainly something that some photographers did choose to use on
Flickr a lot. So I think they do have some competing audiences in this redesign
might a sign of them choosing to go towards a direction that is away from some
of their more creative Commons minded users and towards some of the people who
are more interested in limiting access to their works. But it may also just be
that they are being managed by a different group of people and the folks who
originally started Flickr, and they may not as aware of how compelling line
creating Commons parts of Flickr. So it just might be that they’re not as aware
of their audience there.

Denise: Yeah, I think that Flickr definitely
has that tension in its user base and that the feature where you could turn off
downloading entirely is still there and it would seem that that would be enough
of a draw for those who don’t want their images downloaded, it seems like
disabling the right click might be overkill, especially because they’ve got
such a strong contingent of people using create commons licensing on their
photos, I know I do there too. I think there’s a lot of.

Evan: Do either of you have any data about
what the percentage of photos on Flickr are license by creative Commons?

Nancy: I know. I looked at that a couple years
ago, but I really don’t remember if I could find the details. The creative
Commons page on Flickr that we were looking at a couple minutes ago does say
how many images they have in certain categories, and the numbers are
astronomical. I mean, us photographers are right to feel a little threatened by
creative Commons photo licensing. But I don’t know percentagewise, what
percentage of Flickr is open license.

Evan: Even more importantly, then trying to
establish the importance of creative Commons on Flickr. It would be more
important to just know how, reallyhistorically Flickr has been good for creative Commons, making it easy,
allowing third-party development that Corey guy, not Cory Doctorow, but that
Corey Dodd, that Cory Doctorow talks about in that article on “Boing Boing” who
created that script, that applet, ”The Tributor”, that’s what it was called. I
mean, that seems more important than just looking at the raw data of how many
photos are on Flickr in proportion to it, just to recognize that Flickr is so
pro-creative Commons. Such a good avenue for

Denise: All right, let’s move on from Flickr
and talk about trolls for a moment. Check in with what’s been going on with
Prenda law, you know, it lost a bunch of lawsuits on a number of fronts and got
the lawyers, you know, the lawyers. They got sanctioned and definitely nothing
good has been happening for Prenda. That trend seems to be like it could be
continuing there was an oral argument in the appeal of one of the Prenda cases
recently and while it’s dangerous to try and ballpark an outcome from the oral
argument apparently the justices of the, the appeal judges of the Seventh
Circuit were not having a whole lot of sympathy for the Prenda side of things.
(Webpage: ars technica: Law & Disorder/Civilization & Discontents:
“Copyright troll” Prenda Law completely bombs at appeals court.”) Evan, this is
in your neck of the woods, are you paying attention to this printer case
getting argued?

Evan: The only attention I paid to print them
now is just as entertainment, back in the glory days, starting in 2010 when
John Steel and Company started actually filing these crazy lawsuits, I
represented a lot of the John Doe defendants in these, so now it’s sort of lost
its luster for me.So I just look at it
and sort of enjoy seeing where it’s going.And what we get from the arguments in front of the Seventh Circuit is
just more of an illustration of how the shell game, it’s not my term, that’s
what I think what the court used that or certainly what Joe Mullen, who is a
friend of the show. He’s been on before used in the ars piece talking about
that. I mean, it was such a, it’s looking more and more like it’s just this
amazingly complex system of evasiveness that Steel, Hans Meyer, Duffy, Mark
Lutz. I guess he was a paralegal. It was never clear what his role was with all
of this. But he did a lot of communication on behalf of the firm Dejour. Whether
it was Prenda Law, whether it was Steel, Hans Meyer, or AF holdings, I guess
was the name of the plaintiff. It looks like it may have some legal
relationship with Prenda Law, which is one of the things they are trying to
unravel here. So, it certainly does look bad when these issues, they don’t
relate necessarily to the underlining merits of the case, but the court, the
Seventh Circuit Court of Appeals, making inquiry as to the business structure
of the different firms and their relationships of the attorneys to the firms;
when the lawyer representing Prenda Law can’t even explain the legal
relationship between all of those things. That looks pretty bad under any set
of standards that you’re going to evaluate the situation. And we know that
where there’s smoke there’s fire, which the analogy would be that were there
are indications of fraud, there’s probably is fraud. So, I’m just saying that
in the abstract, we don’t know exactly what all has gone on here, but certainly
doesn’t look good for Prenda & company and it just sort of, starting to
fill in the gaps of the, put the color in the picture that we been able to
sketch out of these guys over the past few years and some of their business
practices that don’t look all that scrupulous. So, good stuff, it’s
entertaining.

Denise: Yeah, I think this is the first time a
Court of Appeal has gotten a hold of some of the rulings adverse to Prenda, so
we will have to see what exactly happens following the argument with the Court
of Appeal, what the Court of Appeal actually decides here. I don’t know if
we’ve talked about someone who doesn’t like to be referred to as a copyright
troll but sometimes is Malibu Media. Which runs an adult site called Xart. They
have sued over 1000 Internet users and the fall in the category of copyright
trolls, if we could call them that, who might be able to use intimidation
tactics based on the nature of the content that they have under copyright that
people might be embarrassed, be identified as someone who is guilty of
infringing their copyright. So, in fighting the copyright
troll label and trying to justify the merits of their lawsuit. There
over, there at the copyright blog, some documentation came to light that they
have filed. That talked about the due diligence that they are doing, such as
administering lie detector test to defendants to see whether or not they had
actually downloaded any of the copyrighted material. That seems like something
that is not part of standard discovery Evan and I’m curious to get your take on
that.

Evan: That seems like some civil litigation
that can be pretty darned exciting. We need to get a piece of that, right? Sounds pretty cool. Yeah, on this whole issue of Malibu
Media. This is another company that I have had a lot of exposure to
representingJohn Doe defendants who’ve
gotten letters either from Malibu directly or from the ISPs, who are the
subjects of Malibu Media’s discovery efforts here. So, on the whole question of
the semantics of troll or what constitutes trollism, what have you here. That’s
kind of a silly discussion to be having you can be understand why Malibu Media
might want to distance itself from the negative connotation that the word troll
engenders. But it doesn’t change the fact that the underlying motivation or the
underlying sensibilities is causing Malibu Media to engage in widespread
litigation against unknown defendants over subject matter where if it is made
public that these defendants are accused of trading this content. It’s going to
be embarrassing to them, this is pornography. We can’t forget, but it’s
embarrassing to a lot of people. If that’s made a matter of public record or
even just if their family or friends find out that they are accused it, of
trading pornography online. The whole point doesn’t change the fact that
there’s something that’s unsavory about those sensibilities, that strategy and
those tactics that they use. So, the fact that they are using lie detector
tests just plays right into that, lie detectors tests plays right into that as
a tactic, oh, this crazy, slimy plaintiff is doing this stuff and we’ve got to
stop and put this in proper perspective. They are not getting court orders
requiring these people to undertake lie detector tests, these are things that
defendants are doing probably from a sense of desperation, “hey, I’ll take a
lie detector test, I didn’t trade this file” so it just plays into the
narrative really well, just adds to the story here. So, with all that said, you
can kind of see the point of what Malibu Media is trying to make.They are not trolls in the same sense that a
patent troll is.Purportedly, if they
truly are a real pornographer, if they are actually out there putting,
generating content and putting it in the market place, it’s a little bit
different than what we see with patent trolls who just barely hold those rights
and don’t do anything. So, you can sort of see the differences. I stand by what
I said earlier, it doesn’t change the fact that the underlying motivation is
like, we don’t like to see that kind of stuff.

Denise:Right, and Joe
Mullen wrote over at arstechnca a piece on Malibu Media and is quoting from the
FCT blog, which estimates that Malibu Media may have gotten up to 1,000,000 in
settlement from the 174 settlements. It has reported in the range of
$2000-$10,000 apiece. Nancy, do you think copyright troll problem is getting
better or worse?

Nancy: Well, it depends on what you call a
troll. Copyright owners or at least alleged copyright owners, Prenda has had
some trouble proving certain elements of that even. Copyright owners suing consumers
is, it seems to have been kind of going in waves a little bit. Music industry
tried it for a while. They got a lot of settlements out of people, they also got a lot of negative press out of that. And then the music industry
has moved away from that model. Then we saw some attempts to do that with
movies. And we’ve also seen this sort of troll model with Prenda, of we think,
maybe, and this is just been alleged, I don’t know all the details or
facts.Where there are some people who
we think are seeding torrents and then going after the people who download the
torrents. That’s a little different than what the music companies were doing,
they are definitely legitimate content producers who were suing their users.
But it’s an interesting development in the law and really one of the things
that when I am talking with people. I’m often talking with K 12 teachers about
copyright, and they are really worried about it. One of the reasons people are
so much more scared about copyright issues is because content owners are suing
content users now. That’s a new thing and it’s partly because technology
enables content donors to see what individual users are doing in ways that
analog technologies never used to do. It’s a really interesting social
revolution were the technological change has actually led to some changes in
legal practices that really affect how we feel about the law in our daily
lives. And I think that’s one of the really negative outcome of these troll
cases and of any system of copyright enforcement were content owners are mass
suing users that, people feel a lot less good about copyright. Individual
consumers who are also creators, by the way, feel a lot less good about
copyright and overall it undermines the system.

Denise: Yes, excellent point. Let’s move on to
another area that can be really problematic as technologies come online that
might not have existed when contracts were drafted. We’ve seen over and over
again that digital rights may not have been contemplated when somebody
originally authored a work. And our former intern, Franklin Graves has written
up a great post on his blog, which is called” A Lost Student’s Digital Mark”.
About an eBook deal that involved that very issue, had to do with a book called
“Julie of the Wolves”. eBook rights were granted, I
think, to one party, but the original publisher claimed no, no, we have those
rights under our publishing agreement even though it wasn’t specifically
spelled out. In fact, e-books didn’t even exist in 1971 when the contract was
drafted. (blog: Franklin Graves: “A Lesson In Contract
Drafting: -eBook Deal Violates Publisher’s Copyright.”) So, they wound up in
court over this and the court decided that something called the doctrine of new
use come into play in interpreting the contract here. So even though e-books
were not around, and they were not specifically mentioned in the original
publishing agreement that was determined to be not a problem, and that the
rights were under the original HarperCollins original agreement, swept that in.
Nancy, is this problematic?

Nancy: I think actually as the blog post
points out, this is an example of a really well drafted contract. I’m not
actually familiar with the doctrine of new use. But the words quoted in this
blog post anyway are that the contract transfer the
rights to publish the book in book form and in electronic means now known or
here in after invention. And that kind of language in the 70s was not terribly
common in contracts, but is increasingly really common in content contracts.
This case made me think of another one from a few years back which is the Tacinee
case. This was when the New York Times started licensing its contents out to
database aggregators like Lexus and ProQuest and folks like that. People who had independently contracted with the New York Times
over individual articles. So not staff reporters but independent
contracts, who provided content to the New York Times. They said hey, hey, wait
a minute, we did not give you the right to do this and the New York Times in
examining their contracts. I don’t know the details of the actual language of
those contracts, but those contracts didn’t have a forward-looking clause like
that. So, the argument that the New York Times ended up relying on was the
argument that you gave us the rights to put it in a compilation and compilation
copyrights usually extend to new additions of the compilation. And these
databases are new additions to our compilation. So, the original contracts
didn’t grant electronic rights to the New York Times. So New York Times had to
argue it’s part of a compilation and the electronic
version of the compilation is just the same as the paper version the court
didn’t buy that partly because electronic versions of these articles were not
compiled, they were individually researchable.So in that case, actually the New York Times had to go back and
negotiate with the individual contractors from the past. Whether this is good
or not, it really depends on your perspective and depends on the individual
situation. One of the really negative outcomes of the Tacinee case for
libraries was that there was content. We had paid for in our databases that had
to be removed from our databases because people had put it in didn’t have the
rights to do so. There were articles that went missing from the online of those
news publications that have never come back because they couldn’t go back and
get the rights. That’s a pretty negative outcome. In this case with the Julie
of the wolf’s book, it sounds like it could be a negative outcome. Julie of the
wolves is a classy piece of children’s literature, it’s not one that I have
actually read recently, but the librarian in me goes oh, I know that book. If
the result of this is that the e-book is no longer available because
HarperCollins hasn’t gotten around to end this other company that was going to
make it available doesn’t have the right to do so, that’s too bad. I’m always
up for more content in more form available to more people. So really, it
depends on the individual situation. What the outcomes of these are, but it
really highlights the need both from the side of people acquiring content and
from the side of individual authors to really see what’s in those contracts and
to think ahead about with the long-term implications might be.

Denise:Right, and
that is Franklin’s message of this point. He says the language in the contract
is what caught my eye and provides an important lesson in contract drafting -
think ahead. So we’ll make “think ahead” our first MCLE passphrase for this
episode of This Week in Law. If you are listening to the show
for either continuing legal education credit or other professional credit. We’ve got some information for you over on the TWiT wiki at wiki.twit.tv, it would be under the This Week in Law page there. You can find everything you
need to know about doing that. Evan do you think it would
have made a difference if the contract, really in 1971. It’s pretty
amazing that it did say it could be published in book form and electronic means
now known or hereinafter, and then. What if it just sit means not electronics, do you think it would’ve altered the outcome at all?

Evan: Well, it may have made the court’s
decision a little more difficult because right away they were able to focus on
whether or not e-books and we all know the ease and e-book stands for electronic
right? Unless I missed something. It made their
analysis on that point, quite easier there and they were able to focus that
right together. I’m not so sure it would’ve made a difference if it just said.
You’ve got the right to publish in book form and in all other means now known
or later developed, and guess where I got that language now known or later
developed. It comes right out of section 102 of the copyright act in the
provision talks about those things in which protection will subsist. Now
granted, 1971, was before 1976 when this was enacted by they were drafting, the
process of drafting the 1976 Act started way back in the 60s. So, it’s safe to
assume that this whole concept of forward-looking rights was at least in the
air at that point, whether it had started becoming more codified in what was to
become the 76 act, I don’t know. Travel back in time and see, may be read some
legislative intent and some Congressional record on all of
that but with all that said. I mean, yeah, that really was forward
thinking on the part of the lawyers representing the parties, probably the
lawyers representing Harper Collins, or Collins and Row, whichever one it was
that got those rights to” Julie in the wolves” in 1971. Because, yeah, that was
only like two years after Al Gore had invented the Internet, and so this was
really early in the whole idea of content communications not just data being
transmitted by electronic means. So as a side, isn’t it great to see Franklin
blogging like he is. That was a great post.

Denise: Yes, andI’m going to have to check with him to see if
he knows more about the lawyers who drafted this harbor Collins contract and
dig deeper because we may have just have found evidence of time travelers. If they were able to be that forward-looking in 1971.

Evan: Right, right.

Denise: All right. I don’t know if George W.
Bush has done any time traveling, although he is a Renaissance man these days,
and has been pursuing a lot of painting in his post presidential years; and
like Shepard Fairey, we are wondering if he may well become a poster child for
fair use. Because it has been revealed somebody doing a little digging,
discovered, and I’m not sure if it is this animal New York site that turn this.
That’s where I first saw it.animalNewYork.com,
did a little googling of images of people that Bush has made paintings of are
now on display at his presidential library. (Web site: animalNewYork.com George
W. Bush scourged all his paintings from Google) and discovered that often times
the very first Google image result for someone, such as, say Vladimir Putin
would be the image that George Bush chose to model his painting after. So much like Shepard Fairey in the famous iconic image of Pres.
Obama. It seems that George Bush was using often, often use photographs
as the creative muse for his paintings. So, we are left with the question of
whether there’s a copyright issue here, and perhaps George Bush becoming the
champion of fair use. What do you think Nancy?

Nancy: Well, I’ve had unsurprisingly, I have friends who talked about this stuff on social media. Some of them are
lawyers and some of them are artists which have led to some really hilarious
conversations in the last couple of days. One of my artist friends has sort of
suggested that these are not, basically, it’s like these are not worth the
findings because George Bush is a jerk. Another artist friend said, these are not worth defending because they are terrible
paintings. But the copyright lawyers fender away towards the, well, these are
interesting copyright problem. I think it’s worth
pointing out that is are actually two interesting copyright problems. The
copyright question of “can George Bush as an individual make paintings based on
news photos?” It’s of various question that to me
appears very obvious. Yeah, I can make paintings based on news photos. Can I go
to an art gallery as a student, sit in front of paintings and copy them, yeah,
that seems to be something we expect people to do. How much you transform it or
not doesn’t even usually come up in the question of things like students going
to galleries and copying from that. It’s actually an established technique of
learning to paint; It’s either to follow techniques of
the established painters and copy their techniques, or to work from,
established images and work on your photorealism. So, I don’t know: Can he make
the paintings is a particularly challenging question, but we have a different question here; which is can he do a display of these paintings, and
these paintings are in a gallery show. And I think that’s a much more
complicated question, because it’s a gallery show. Are they acknowledging the
AP photo as sources, are all of the photo sources AP photos that’s another
question, I don’t think given the way people have been talking about “ oh, he
copied from news images.” I don’t think they
gallery show is giving any credit to the originating photos. Credits not direct
a copyright issue. Most of the time, but it certainly affects how much of a
jerk you look like if you ever get sued about copyright. That’s how I often
talk about it with people when their excited about credit and fair use issues.
So, they’re not giving credit to the original photos, there’s another way to
credit that does sort of affect the copyright. First of all, should they have
to pay for a license for their display of the derivative works that may be one
fair use question. Then there’s also the fact that
they are commercially benefiting, or somebody’s benefiting some way from this
display. I don’t know if George Bush is himself but somebody’s who’s putting on
the display is either getting economic or at least attention benefits, and they
are not passing on the benefits of that attention to people who are visiting their
display. So if you wanted to make and argument that this is causing market
harm, they are using my image for commercial purposes or perhaps not
commercial. I don’t know the details of the display, but they are using my
image for a public display in a way that prevents people from finding my
original and paying me for my original. So there’s a couple of different ways
you could make an argument about market harm for the display. Then of course
there’s for the display, there’s still the question of are these transformative
uses.And transformative use tends to
lean towards, even commercial uses may be okay if they
are transformative. I don’t know. That’s where we get back to my artist friend
going, “but they’re so bad”, and other people saying “are they transformative
because they are bad?” (Laughter).There’s
been other cases like this, there’s lots of art based on photos, some
licensed some not. Its kind of a challenging area, you can make transformative
arguments, but sometimes you’re thinking, well, it’s not always fair to the
photographer who’s not even getting the attention that they might get if they
got credit.

Denise: Okay just to add to some detail to the
commercial aspects of the display. These are being exhibited at the George W.
Bush presidential Center in Dallas. One can purchase tickets to go see them, so
it’s not free to the public. One can also purchase this vivid booklet online or
in person. So there is definitely revenue coming in to the George W. Bush
presidential Center over the display of these paintings. Evan what’s your take?

Evan: Well, Condoleezza Rice told me that
George W had Donald Rumsfeld negotiate a license for all of these, so it’s no
deal. So we’re all good. No issues here. No. Everything that Nancy said, I
think that’s a really good analysis of some of the different issues that play
into this especially the market effect and all of that stuff. Where I see some
interesting commentary and analysis to be that is on that question of
transformative nature of all of this. And this sort of picks up on a thread
that Marty Schwimmer was talking about last week, more in the trademark, and
that boundary area where you can sort of straddle copyright and trademark issue
when it comes to parity and fair use when it comes to that. I was immediately,
of course I thought about the Shepard Fairey case and I think Shepard Fairey
had a much better fair use argument than what George W has here. At least in
that case, he had change the color and made it appear different and sort of
conveyed a message that the original photograph did not. Here we just have sort
of a slavish copying of the photographs in the best way that the new artists
like former president can do. He was trying his best. So, I also thought about
a case from more than 20 years ago out of the Second Circuit Court of Appeals
called Rogers versus Coons. This is a case that anyone taking a copyright class
in law school, you get to know this case and victor in the show notes, that’s
what we were talking right about just before the show. I put a link in the
spreadsheet to an image of the subject matter in Rogers versus Coons. (Photos:
two images beside each other: first image, black and white in color shows woman
and man holding for puppies: second image: colored images of two human statues,
one female and one male blue puppies). There you go.
So, on the right is the, sorry on the left is a photograph. This was a
photograph that the plaintiff Rogers took and they used this on greeting cards
and postcards and stuff like that. And on the right is a sculptural work that
Jeffrey Coons, a pretty well-known artist and he was able to fetch 3 almost
$400,000 for selling three copies of this sculptural work you see that he made
over here on the right. That was clearly a copy of the photograph that you see
on the left. For those of you just listening to the audio, this photo is not
hard to find online. If you search for Rogers versus Coons.

Denise: It’s a couple sitting on a bench with a
bunch of dogs, puppies.

Evan: That’s right, so Coons wanted to make a
commentary on the banality of everyday life, and he instructed his assistants
who did the work, I think this is a wooden sculpture in wood painted so it is
multimedia. He instructed them to copy as closely as possible the photo graph,
they did a reasonably good job better than I could do with a pocket knife, or a
Swiss Army. So, and then, you know, just a couple of differences: the puppies
are blue, the photograph is black and white, so maybe those puppies actually
were blue in real life, I don’t know. Probably not. But so they made the puppies in blue exaggerated their noses and put flowers in
the hair of the people. The photographer sued Jeffrey Coons over this, long
story short Jeffrey Coons lost. He had argued this was a parody, commenting on
the subject matter of banality of everyday American life in the court didn’t
buy this because it wasn’t too much of a commentary on the work itself. So, you
know, now we could switch back over to the George Bush painting scenario. I
don’t see any sort of commentary, I don’t see this as
human beings nearly as close of the case as what Shepard Fairey had or what
Jeffrey Coons had who lost. There’s not nearly as much commentary going on
here, which would fall under that analysis of the transformative effect. Which of course is only one of the non-exhaustive fair use factors. I just don’t see it at all. Here were there’s any transformative thing going on
here, unless you can somehow say that, these are the perspectives of world
leaders through a former world leader himself who got to know them. But man, you’re
just really getting out there on the periphery of how this could be viewed as
commentary. So, I think that a fair use argument is pretty, would be pretty
heart in something like this. Based on some of the things we have seen already,
particularly if the court were to follow the line from the Coons case, which of
course has a factual touch point to this one, of this one being a subsequent
work. That’s based on a photograph. So, George W, I’m sure you’ll figure out
something. If you’re called to the mat, but hopefully this
will just stay academic on this.

Denise: Yes, good law school exam question this
one. All right, I think there’s something real interesting that has come to
light about dropbox. And Kyle Orlan wrote on it at Arstechnica. And it not only implicates copyright issues,
but it illustrates how in the era of stringent enforcement in which we live,
that copyright issues can also begin to raise, I would call them privacy
issues. Although we can discuss in a moment whether, if you are sharing
something that infringes you haven’t any sort of privacy interests. Typically
when you are doing something that violates the law, any other rights you may
have in pursuing that activity would go away. But here what we are talking
about is for files being publicly shared on Dropbox. What happened here is, someone named Darrell Whitelaw tweeted a picture of an
error. He received when he tried to share a Dropbox file via IM. And what
happened was he got this error message immediately after publicly sharing the
file which caused him to think, well, Gee, I getting, the file. I publicly
shared is getting automatically and immediately scrutinize for copyright issues
because what the Dropbox page warned was that files in his folder might be
subject to a DMCA notice. So, what developed here and there is some nice
journalism that Kyle did to really flesh out the details of this story. It
turned out that Dropbox is keeping records of data on files that it has removed
for, pursuant to DMCA notices. It has hashes of those files and if something that
you shared matches one of those hashes, then apparently, this seems to be what
happened to Darrell Whitelaw, it’s going to be for there’s even a DMCA notice
filed as to the specific thing that you shared, it’s going to match it to your
hash and proactively say that it can’t be shared. So, this seems to be what
Dropbox is doing in order to take care of its compliance issues. Now
understandably, this has people concerned, because people put all manner of
things and share all manner of things via Dropbox. And I guess, a law-abiding, non-infringing person might be concerned
that the moment that something is shared with another user of the service that
a scrutiny that file is being done there could be some privacy concerns to be
talked about there. So, Nancy. I wonder what you think
about all this?

Nancy: There’s a quote in the article that
says “I think of Dropbox as my hard drive” and I’m sort of, there’s a part of
me that goes,” why on earth would you think of Dropbox as your hard drive. It’s
networked, it’s networked and it enables public sharing” There’s also part of
me that is very sympathetic to this. I actually don’t use Dropbox, partly for those reasons that I know it’s not actually my private space. It’s
just a super convenient tool for people who are on the go, having files that
are networked is really important, being able to
travel around and do different things. So I have sympathy, but I’m a little bit
surprised people, I’m not surprised. If you haven’t been paying attention at
all, I’m a little bit surprised if you’ve been paying attention to content
issues online and you are surprised that online services are running hashes
against your file. It’s not, they’re not actually
required by the DMCA to police their content that way. There’s been a lot of
fighting in the agreed portion of the content industry who talks how the DMCA
processes don’t ever work. That there should be a notice of stayed down
requirement, not just a notice of takedown requirement because the takedown
requirement let’s people just, it’s like playing whack-a-mole because everybody
just re-uploads the file. Okay, that is a problem for people who are
independent content providers. It’s not a big problem for massive corporations
because they have these business relationships with a lot of the online hosts
where through the business connections that they have they’re getting hosts to
implement proactive policing technologies. Most of that is through private
arrangements. There have been a few cases here and there were courts have been
a little bit more, the DMCA 512 service provider liability provisions they give
you sort of isolation from liability hosting other people’s stuff. There’s been
some back and forth on whether those hosts have a duty to police files. As
read, and in the initial interpretations, they impose neither a duty to police
nor a liability if you do police. They’re actually supposed to encourage either
one of those paths. A few courts have read in some duties to police, some
related to “knowing” what’s on your server, but most of the hashes and the
Youtube contents system are really more on the sword of private ordering side
of things. It’s just that it’s been a growing part of the private order inside
of online content postings for quite a while. It’s an interesting thing that
affects me in my daily work in a very odd way, which is, I deliver about
copyright online and in my workshops about copyright. I often use copyrighted
content to illustrate things related to specific cases. My institution has
until recently, well currently still does hosts some
online conferencing services for us, but we have also signed up for Google, for
Google apps. And so there’s, I see a day coming when I will be encourage to use
Google hangouts for all my workshops, I love the technology of Google hangouts.
I know YouTube content ID is run on hangouts, I can just see coming down the
pipe some time when I’m teaching a copyright workshop and my workshop gets cut
off because the algorithm matches my content against content ID hashes, and
even though mine is fair use the algorithm can’t recognize that kind of stuff.

Evan: Just don’t use Grand Theft Auto in any
of your presentations. That harkens back to what we were talking about a couple
weeks ago there was like, what was it Denise. It was like a record label like
jazz artist, right who heard the sirens? The video casts from Grand Theft auto
and took it down.

Denise: Yes. It also harkens back to Prof.
Lessig and his presentation were he used the oh what’s
it called List-O-Mania, the Australian Artist. So yeah,
absolutely. So I think you’re right, Nancy.

Evan: Yeah, they’re friends the record label
was Australian but he makes his friends, I don’t know why I had to stress that
point, go ahead.

Denise: S s’ilvousplaît. Yeah, I think you’re
absolutely right. As more and more people start adopting Google hangouts that
you’re going to see that problem, especially in the academic arena where fair
use is unnecessary part of getting your point across. You know the other really
interesting name. I thought reading through this is the discussion here about
not only is Dropbox keeping hashes of things that have been subject to DMCA
takedown, but it has been using file hashing algorithms. It says for a while
now as a means of de-duplicating identical files stored across different user’s
accounts. That means if I try to upload an identical copy of a 20 GB movie file
that has already been stored in someone else’s Dropbox account, the service
will simply give my account access to a version of that same file, rather than
allowing me to upload an identical version. This not only saves bandwidth on
the user’s end but significant storage space on Drop boxes and as well. And of
course it makes perfect sense from an efficiency and bandwidth choice but on
the legal side, it’s pretty problematic. That would put MP3 tunes out of
business years ago and this is file lockering and enabling people to use a
server based copy potentially across many, many users. Does this set off your
copyright red flags, Evan?

Evan: Yes, I mean, there’s obviously a
privacy issues of it, and I think those are pretty self-evident.
Like, wait, I uploaded this file, and Dropbox you’re going to allow somebody access
to this file, that I think I uploaded myself, and what it’s there is there some
error in the hash matching and instead of this file that this other user is
going to see home videos that I didn’t want anyone else to see, for example,
something like that. There’s that. And I can also just imagine let’s take this
out a year out where we have a decision from the Supreme Court in Aereo. In the Supreme Court comes down on Aereo’s side and says it’s all right, it doesn’t. How do we
articulate this, it’s all right, transmit clause allows you to do this because
it’s one copy one person, one user. What have you there. I can just imagine Aereo and its lawyers, “Dropbox
look at all this work we did for you going to the Supreme Court to validate
this business model and here you go, doing stuff like this where it’s one copy
multiple users, we placed this path for you and you have to go mess it up and
even though we saved the cloud Dropbox go and mess it up like you done.” So,
there’s that whole side of it, I that as an interesting copyright, more like
going 18 months into the future. Looking back, but maybe we can look back at
this and say we were pressing interests.

Denise: So, Nancy, what do you think about the
one copy multiple users for Dropbox?

Nancy: Yeah, I was thinking pretty much
exactly the same way about the Aereo comparisons and
then Youtunes. This issue of like how, who has so many, how many copies, when
are you doing something like digital for sale, do you have to erase the one
that’s already in your hard drive shared with someone else. This is an area
where the law is so completely out of touch with the technology that it results
in these absolutely bonkers things that, I think it totally makes sense to hash
against your storage for minimizing storage. It totally makes sense to say we
only store one copy of that file and we traded off to everybody but copyrights
wise, The courts have been pretty consistent in saying,” sharing out one file
to everybody is much more of a problem than sharing out the file to the person
who uploaded it and sending it back to that one person. That’s
counterintuitive, but copyrights counterintuitive in a lot of different ways. I
think this is an interesting way of doing one thing for copyright compliance,
if the was DMCA notified were not going to let you share with other people, but
at the same time they’re applying the technology that may actually expose them
to liability in the future.

Denise: It’s almost one of those rare
instanceswhere being old is an assistance to you in
having an online business or some sort of forward-looking.com start up that, I
think the people at dropbox weren’t just around when MP3 got shut down and
don’t remember that it resulted in, in the largest damages awarded.

Evan: Like $70,000,000,000,000 or something
like that.

Denise: It was a lot of money. I don’t remember
how much it was, but at the time I just remembered it was like never before
have we had.

Evan: More than what Michael Robertson had in
his bank account at that moment.

Denise: Definitely that, yes. All right, well,
since were already talking about some entertainment related issues and have
touched on Aereo let’s actually play our bumper and
go there.

(This Week
In Law: Entertainment Law bumper with music)

Denise: All right, I just wanted to see if
anyone has any current thoughts about Aereo, I put an
interesting article in our rundown and folks can access everything we’ve been
discussing that has been inspired our discussions on the show today at delicious.com/thisweekinlaw/254. Good piece
by Matt Schroer’s called cloud denial as it precedes the area of case, the area
case is about to be argued in the Supreme Court within a couple of weeks here
before the end of April and there has been as this article points out some
seeding of the environment from the entertainment industry side of things.To try to point out the disasters that will
befall if the Aereo case goes the way that Aereo wants it to. And how cloud computing is not truly on
the block here so Hollywood wants us to think. So, Nancy, do you have a take on
this?

Nancy: I don’t ,I haven’t been following Aereo quite as closely as some of the other cases because
it’s not directly tied to my work, but I’ve been really interested in this
question about the cloud computing threat here is related to the fact that the
files are being streamed back. And it’s sort of conflating a couple of
different things that traditionally have been different things in copyright.
Like cloud computing isn't actually anything new. It kind of makes me annoyed
when people are like “oh, cloud computing is a new thing!” I’m like, no it’s just
servers, you know. But, and servers and clients have been around for a little
while, most of my life. When you’re using a server in a more sort of
traditional way, when you put a file on it and you take a file back off of it,
there’s no real argument that could be made about public performances there.
You’re making copies, there’s not a public element to the transmission. But
somehow streaming has brought in this idea that even if you’re streaming to an
individual, or multiple individuals across multiple different streaming
accounts, that’s a performance. So I’m really interested in the way that
actually streaming technologies are playing into this. Obviously we don’t want
to undercut streaming content from a cloud and I really do think that the way
the case is being argued there could definitely be president coming out of it
that could make cloud streaming services way harder to do legally.

Denise: Evan, what do you think?

Evan: Yeah, I buy into that, I mean, you know
that if the decision in Aereo comes out that way then
the stakeholders that would benefit from its broadest possible interpretation
will indeed make the argument that it could. So it almost seems like one way or
the other there’s going to be a legislative fix that would need to come about
from this to match up the legal framework for all of this, to match up the
legal framework and the modern technological reality. If cloud computing is
killed then maybe congress would step in and say something appropriate to amend
the transmit clause. If the Aereo business model is
validated and that means the end of over the air television maybe, even though
this may not be what we want to see, maybe there will be some sort of
framework, some sort of compulsory licensing framework put in. You know, something to keep that from dying off, from being
killed by the validation of Aereo as an acceptable
non-infringing means of the distribution content. So I’ve said it before, I
think Aereo is pretty watershed and something is
going to happen one way or the other that we’re going to look back on the Aereo decision and you know, I think It’ll make the hall of
fame of copyright decisions. You know, we spend a lot of time talking about
cases like Grokster, Sony, you know, if we get back
into the old days of, I think it was just last week or fairly recently, we were
talking about Baker vs. Selden and Saroni, you know,
some of the hall of fame of copyright cases. I think that Aereo has the potential to be up there, if the court decides to truly take the issues
on and not do something strange procedurally with it.

Denise: Yeah, alright, so we’re still waiting
on that one. A couple of weeks ago when Popcorn Time was mentioned in the news FarhadManjoo published an
article that is primarily about windowing. He titled it “Why Movie Streaming
Sites so Fail to Satisfy”. It’s in the New York Times and he highlights the
fact that “Netflix Instant Thinking About Adding a
Good Movie” was an Onion headline recently. So, you know, running joke that the
online streaming services are doing the best they can with what they have to
work with in going through the proper channels to licence everything. But something like Popcorn Time comes along when people can get
what they want when they want it, and that’s why it seems so compelling. So the
message of his article, basically, is Hollywood is going to have to rethink
this whole windowing thing if they expect to compete with piracy and free. But
there doesn’t seem to be much movement toward that. I would say that the one
thing I’ve seen recently is there seems to be a move toward putting movies, say
on Amazon Instant, on the day that they have their DVD release, but they have
the DVD price. In other words, you can’t rent them until the window expires and
they’re available for rental. So people are still being held hostage for the 15
or 20 dollars that they need to pay to get the HD quality streaming right when
the movie is released on DVD. Which, do people still buy DVDs? I’m not sure. So
I thought it would be interesting to just talk about the future of windowing,
whether we will be living with it for much longer or not. And Nancy, you were
telling us before the show, you were just at a conference where this came up.

Nancy: Yeah, on a side note, I actually still
buy DVDs because I like to have physical content that doesn’t have licence restrictions on it. But I don’t know how long I’m
going to be able to keep doing that. I don’t know how long physical DVDs are
going to continue to be available. I was at a conference last week at Berkeley
where we were talking about legislative copyright reform. There were a lot of conversations, there were a lot of really different points
of view represented in the room, which is one of the things I love about this
conference. And at one point, one of the people from the music industry, or the
movie industry, who was there, was talking about a different issue said “but we
couldn’t fix that, because then windowing wouldn’t work.” as if windowing was
this sort of set thing that had, I think it was completely not on his radar
that windowing is a created thing. It’s a way that the movie industry business
model has worked. But the way he talked about it, and
this may have been intentional, but it may be just so ingrained in his mind,
windowing has to happen, so we can’t do these other things. I was at a table
with a bunch of librarians, and there were a lot of other people who represent
public interest groups related to copyright. And a lot of scholars in the room
who have a fairly nuanced view of copyright, and there were a lot of small
noises around the room as he said “well, windowing must exist.”, because, you
know, windowing doesn’t have to exist. It’s something that the movie industry
cooked up to allow them to charge different prices in different markets. So,
you know, they release in movie theatres, they don’t release on DVD the same
day. They release in movie theatres in the U.S. and then the poor people in
other parts of the world are having to wait for six
months before the movie is released there, so that they can price
differentiate. A very related concept is the region
encoding on DVDs, it’s a way of separating markets so that you can price
discriminate. Well, I mean, the movie industry managed to make region encoding
not just an industry standard but to make it actually a violation in law to
circumvent region encoding. I mean, that’s one of the things in the DMCA that
sort of, you know, your DVD playing software will maybe let you switch regions
a couple of times, but not after a long time. And it’s really hard to buy
hardware that can legally play multiple region DVDs. So, while I think that
windowing is something that is actually encouraging piracy in a lot of markets,
you know. If you know that a movie exists, why would you wait six months until
it’s in a theatre in your market, like I do think that windowing is probably
encouraging piracy, but at the same time, if we think that the movie industry
is just going to give up on this model, they haven’t in the past, and they have
managed to make legislative changes that require technologies to enforce some
of the business model decisions that they have made and are trying to stick to,
even though they may be out of date.

Denise: Evan, do you think that tools like
Popcorn Time, if not Popcorn Time itself, other tools that come along and make torrenting simple for the masses and may be comforting for
the masses, thinking that they are somehow more insulated in some way, even if
they’re not, for direct liability for infringement, do you think that that will
have an impact on windowing?

Evan: Well, you know, it would almost have
to. And, it’s sort of like the same analysis that would go into a government’s
thought process as to whether to change some policy because of outrageous,
outrageous isn’t the right word, but very strong, very vocal, very widespread
civil disobedience. From a market standpoint, eventually the content industry
ought to fashion itself so that it’s meeting the demand, and what better way to
perceive that demand than through activities like widespread adoption in the
consumer base of technologies like Popcorn Time. I’m sure we’ll see many others
of its ilk come into existence here in the near future. I think the best
similarity we can point to is the way that music piracy changed the, well,
well, I don’t know if music piracy changed, but certainly the manner and means
and economic circumstances of the consumption of musical files changed with itunes, that was a huge shift there. We ought to expect
something similar if the content industry is going to see the demand through
this way. At the same time I think we need to be a little bit careful in
critiquing the content industry's model on this. And I know this is what people
love hearing me say, is, there is a certain real economic benefit to them creating
scarcity in this way, of commodities that they distribute. And I’m sure we
don’t have to go too far afield to find industries creating scarcity themselves
when it comes to the distribution of other goods that don’t necessarily
directly involve intellectual property. You know, like companies will have
seasonal promotions all the time and you know, that’s a certain kind of
scarcity. Same question is, why can’t I get Girl Scout
cookies in September? You know, I love Girl Scout cookies, I’m entitled to
them, but you know what, the Girl Scouts only sell them in the late winter or
whenever that is. I know that we’re out of our supply so I’m jonesing for some Girl Scout cookies. So you can think of
all these kinds of different examples and so we’ve got to be cautious before we
just say that it’s a priori a bad thing for a market to be able to fashion it’s
distribution modes in ways that bolster scarcity, so that’s just got to play
into the analysis somehow.

Nancy: If I may does another benefit to price description is very real and very worldwide. The
ability to window means that they can charge different prices in different
parts of the world. If the movie industry is forced by technological
developments into releasing movie sort of once, what region is going to set the
price for that? The region that can pay the highest. Set a price that US consumers can pay. And consumers in other parts of the
world or less economically advantaged consumers in this part of the world will
be able to buy the one price one purchase copy. This is something we think
about in the library world because we really are one of the only places that is the only way that certain people contact access
technology even in our relatively rich economy in the United States.

Denise: Is that necessarily true though Nancy
because couldn’t they release at different prices just at the same time?

Nancy: Well there will be a lot of questions
about what kind of discrimination that can be and can’t be supported. Right now
the reason that windowing happens really is about price discrimination. There
is some degree to which they would be able to offer sales and different
countries at different prices. But if you really want to combat piracy you
really want to try to get out there at this price point for the places where
you do lease work to segment your market. Sorry, I don’t know if that made the
most sense, but I think they could probably price discriminate summits that but
I do think the possibility of much lower price copies for certain markets is a
lot harder to achieve if you are not windowing if you are not region encoding.

Denise: Right, and the only way for the message
to get sentence for that you know high-priced market to but with its wallet and
if they’re not quick to buy into windowing, if they’re going to be able to weed
out until something is available at a lower price, ensure that many people do do that. Being a woman of principle I would like to do it’s
with the second installment of the hobbit but Benedict, batch just did me and
you know. I couldn’t wait. I didn’t get to see it in the theater and when it
came out on Amazon was available for $15 I plunked down. You know there though
my principles. I think since we’re talking about movies this would be a good
time for intermission and a snack. Because we have a new
sponsor for this episode of this week in law. and it is nature box, and
I’m really excited about it they sent me a box and for those who have listened
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Evan: They sent me one too and it really is
awesome. Our six-year-old is like the pickiest eater on the face of the planet
and he loved the whole wheat raspberry fig bars so I’m just jumping in here
we’re totally ordering this this is good stuff.

Denise: Absolutely you must’ve gotten sweet, I
think we had savory because we had more nuts and spicy things, but they’re all
delicious. so check about naturebox.com/twit. All
right, we cannot end this show without talking about some of the privacy
developments that happened this week so let’s go there. So the scary thing
about heart bleed, hopefully you’ve heard about heart bleed, if you haven’t,
you like me, have been burying yourself under a rock and on spring break. But
even I’ve heard about it. So heart bleed is apparently a problem with openSSL and what I’m gleaning about it is that it’s so
terribly frightening because sites can have been compromised and they never
will have known about it. The compromise happens through a layer that just
can’t even be tracked, so certain sites have been compromised, Yahoo, Imgur, Flickr, various others. Hidemyass.com is probably one
of my favorites to just talk about, but in any event, it’s a security hole
that’s capable of being exploited, there’s no way of knowing how much it has
been exploited. Your password and other information can be out there. Sites are
being very proactive in letting you know whether or not they’ve been
compromised. Or they think they have been capable of being compromised. So the
Gizmodo piece wraps up by saying “you can put on a tin hat but sometimes the
best solution is to just keep a close eye on your credit card statement”. This
one is so deeply tied into the way that secured data is sent over the web,
that, again, there’s no way for sites to know what kind of leakage has
happened. So it’s a big deal and I know that you’ve been paying attention to it
too, Nancy, any thoughts or takeaways on this particular security breach? It
doesn’t seem to have been an exploit of any kind that someone consciously did, it was just a coding error.

Nancy: One thought from the copyright and
computer geek side of things, you know, I am a huge fan of open source
solutions to all kinds of problems, and a couple of people have said “well,
this is highlighting the weaknesses of open source in correcting itself”, other
people have said “well, no, I mean, open source is actually really good at
correcting itself, it’s kind of surprising that something this big has gotten
through, but you know, but the amount of coding that’s done in open source
communities, this kind of error has occurred before and has gotten caught
before.” So you know, there’s been a little bit of
discrediting open source because of this and I’m definitely not on board with
that. I do think it’s a good argument in investing more support in open source,
you know, get more people looking at this stuff and the more likely you are to
catch these things sooner. Another perspective from which I’ve been thinking
about this, because I’m known by my librarian friends as being a paranoid
person, I think I’m not at all paranoid because I hang out with people who, you
know, hack computers for a living. So I don’t use the same password anywhere
and apparently this is an unusual practice, which upsets me. But a lot of my
friends have been talking about using password managers, so there’s
been a lot of discussions about how you avoid problems from things like
this. Either from generating different passwords for every site you go to or
using a password manager to do that. At least one of the most popular password
management was compromised or was open to exploit under this bug. So it’s been
an interesting point of discussion I was like the xkcd comic about password strengths from a couple years ago. just the idea that
there’s ways of making yourself less vulnerable to these bugs when they come up
in the future but they’re not things that everybody knows about so I always
like to make people aware of that.

Nancy: Good point, Evan, are you going around
changing passwords or adopting a password manager and do you think that, I
mean, this has got to be frustrating for law enforcement because there’s no
paper trail here.

Evan: Right, I mean you haven’t heard much
about investigating some of the fallout from this. Any
responsible parties. So that has to be frustrating. Yeah, I was kind of
freaking out, I had to go change my credentials at Us
Magazine subscription so you know the first thing I did when I heard about
this. When I try to figure out what was, or try to understand sort of from a
technical standpoint what is actually going on here, it looks like it could be
bad I guess the assumption is that a lot of credentials are out there and
orders of millions of millions of information that people wouldn’t want out
there, is out there. it really sort of came into perspective when you read
Bruce Schneier, he’s really, in my book, and I think for
many others the be-all and end-all on statements about security and think about
these issues. And he says on a scale of 1 to 10 this is an 11. So take that at
face value that is pretty bad, even not necessarily being to point to
particular reasons why not, or why it is bad. But he did make an interesting
addition to his blog post on it yesterday. and you
know so far heart bleed has been out for a while, right, more than a week. And
you know we don’t see any evidence of anything truly catastrophic having
happened yet. he comments of whether there’s going to
be some backlash from the mainstream press and public if nothing bad happens. Isn’t that like no good deed goes unpunished. Comparing it
to something like the Y2K bug you know is this going to be something within the
security industry is going to be accused of crying wolf. So sort of a strange
proposition because you know as proactive measures are being taken to prevent
any fall out you know it’s sort of like the problem is solved and that’s why
there’s no backlash. The same thing happened with Y2K, companies spent billions
of dollars preparing for the turn-of-the-century and the disasters we were all
concerned about did not happen and you know, get accused of crying wolf but
wait, what, you wanted something bad to happen? Would that have been better?
Certainly not as sensational for the reporting on this kind of stuff so I see
that meta phenomenon of the reaction of this as
something pretty interesting that certainly we need to watch and see you know,
because I’m optimistic nothing bad is going to happen. Just because it’s better
to be optimistic in that way, so we should watch for this accusation of crying
wolf phenomenon. That’s pretty interesting.

Denise: alright well we generally expect people
exploiting technological weaknesses to be black hat hackers, someone that law
enforcement would be coming after if they could. this week there was a story that showed us that even law enforcement will take
advantage of vulnerabilities that they discover. it came to light some Los
Angeles police officers were sabotaging their own voice recorders, they’re
recorders that are automatically activated both in the car and on an officer’s
person when they are in the process of engaging with somebody and these
actually are protective measures oftentimes for the police in case of a
passerby or someone they’re actually engaging with, making their own recording.
The police can have their own version to show what they think happened or say
happened. some officers apparently didn’t like being surveilled in this way so much. And they figured out if
they removed the antennas from the recorders that this seriously degraded its
ability to pick up what was going on and so some antennas were removed and
there was an internal investigation and it’s just coming to light now. I think
there was a lot left to be desired income is whole thing was handled. But it’s
not always the hacker exploiting the technological vulnerability apparently the
police will do it too if they figure out that they can. this was more just kind of a sad comment on society and a bit of comic relief for
the show. Evan do you have anything to add?

Evan: Well, can you blame them? I mean geez, do you want a recording to be made of everything that
you were doing in the course of your work in the course of a day? So you know
you can see where the cops are coming from they’re human. You know, they
shouldn’t be doing this because part of the reason that this technology is
there to protect them and their prospective. You know, if somebody’s going to
say that they were the subject of brutality at the hands of the police, this
video evidence could be exculpatory. Or wait, exculpatory, what’s the word I’m
looking for? Yeah, exculpatory.

Denise: yes exculpatory.

Evan: Yeah, whatever. and so maybe that’s just why we need to have robots replace all law enforcement. So robots going out there policing everyone. That will solve
it.

Denise: Yes, because if they’re following the
three laws of robotics apparently, they would not remove their antennas. Any thoughts on this Nancy?

Nancy: I’m not so perhaps convinced of the
police always having the best motivations as you seem maybe to be. I’m not surprised
at all the police officers removed their antennas. I’m not so worried about
them needing the exculpatory evidence as I suspect that some of them removed
the antennas because they intended to do things that they knew they didn’t want
caught on tape. I really have a lot of respect for law enforcement but I have
seen far too much abuse of power to expect that law enforcement always has the
best of intentions on any technological developments.

Denise: Okay and on the NSA surveillance front,
just a quick update on the case that we have discussed before, it is the only
district court case in the United States where a judge has come out and said at
the phone data gathering practices they violate the fourth amendment and do
violate the reasonable expectation of privacy. It’s called the Klayman vs. Obama case. There was some effort by the
lawyers there to launch a case directly from the DC district court where it was
heard, Judge Leon was the district judge there. That was unsurprisingly
unsuccessful, what generally happens is there has to be an appellate level
review before you get to knock on the supreme court’s door, and ask them to
hear your case. And that’s what’s going to happen in this Klayman case, the DC circuit is going to get it’s crack at
looking at these issues. Also on the NSA front, and speaking of windowing,
Edward Snowden has given this exclusive interview to Vanity Fair, which seems
distinctive in how much about it is known before it’s actual release. At least as the week has been winding on here. I think it
may have been released, today is the eleventh right? So I think it came out
yesterday. And I think we’ll probably talk about it more next week. I don’t
have too much that I wanted to delve into it about it, I mean, some interesting
insights from Edward Snowden. Evan I don’t know if there’s anything you want to
delve into, or maybe we should just shelve this one and move onto our tip in
resource, what do you think?

Evan: Yeah, well let’s talk more about it in
the future. I think the interesting thing I’m going to be paying attention to
when I’m actually reading it is the comparison that Snowden draws between
himself and Julian Assange, you know he says that
unlike Assange he himself, Snowden, is not
anti-secrecy, he’s just pro accountability. So that’s what I’m going to find
interesting when reading the article, is how Snowden thinks of himself in
relation to WikiLeaks founder, Julian Assange.

Denise: Absolutely. So let’s go onto our tip
and resource of the week. Our tip of the week is also, you know, a current
event, and that is that Newegg in house counsel, Lee Cheng, not someone you
want to mess with. So if you are a patent troll, if you haven’t already gotten
the memo, and you go ahead and go after Lee Cheng, who we’ve had on the show
before, you’re going to have to just take your lumps, ‘cause he’s going to be
there to dish them out. The most current troll that he’s made some headway with
is called MacroSolve. They have managed to get 4.6
million dollars in payments from over 63 defendants, but Geico and Newegg drew the line in the sand and said “if you’re going to come after
us, we’re going to fight back.” And in fact they’ve formed a consortium of all
the defendants in the MacroSolve cases just to make
life more difficult for MacroSolve, and they’ve filed…

Evan: Is it true that Geico sent the little gecko? Because I have this image of that little gecko sitting
on Lee Cheng’s shoulder, going “no trolling.”

Denise: Yeah, you know, geckos are well known
for their ability to take down trolls, I don’t know if you’ve come across that
in your fantasy literary readings, maybe Nancy has, with her vast knowledge of
library contents, but yes. Geico the gecko and Newegg
have decided to stand up to MacroSolve, they’ve filed an ex parte reexam with the USPTO which prompted MacroSolve to withdraw
all of its pending lawsuits. So that’s a big deal. MacroSolve hasn’t said it’s going away, it’s going to see what happens with the re exam,
it is flustering about potentially refiling. But it did go to Newegg some time
ago and say “Hey, you know, no harm no foul, we’ll go away, we’re happy to
dismiss you from this case”, but Newegg said “not so fast, you know, we’re not
willing to waive our cost in fees, so if you’re going to do this don’t think
you’re going to get off scott free, we’re going to
come after you for our cost in attorney’s fees, as we are entitled to by law if
we’re the prevailing party in the suit.” So don’t mess with Lee Cheng. Our
resources of the week also relate partially to patents there is a great piece
by Derek Khanna over at Politics that is how to really fix the patent system
and why congress unfortunately is unlikely to do it. It’s a great history of
the patent system in the U.S. and a great delving deep into why we are where we
are withe the patent system, and how it’s not just patent trolls you need to be
concerned about, but the large body of patents amassed by companies that you
don’t think of as trolls. The actual practicing entities
companies that have lots of technologies but just amass their patent portfolios
really as a legal strategy more than anything else. So check out Derek’s
piece. Also, there’s a great YouTube video, maybe we could roll just a bit of
it Victor? Called “The Rise of the Patent Troll”. That
is terribly educational for anyone who you need. Starts with
Adam Carolla there.

So if you
find yourself needing to know more about patent trolls, or explain what they
are, this is a really valuable resource. It and everything else we’re referring
to today will be at twit.com/thisweekinlaw/254. Also
courtesy of a guest who unfortunately couldn’t join us this week, we hope to
have Gabriella Coleman join us sometime soon. She is an expert on hackers and
their ethics and ethos and a scholar and author on those topics. She pointed to
an SSL server test from Qualys SSL Labs that forms a
deep analysis of the configuration of any SSL web server on the public internet
to tell you whether it is vulnerable to the heart bleed issue. So if you have
not yet checked your server, I can’t imagine there is anyone who, there is
anyone who has not. Or if you are curious about a server that you may not be
responsible for but frequently use you can check it here at Qualys SSL Labs. And with that we’re going to wrap up this episode of This Week in
Law, Nancy, it’s been such a pleasure having you join us, tell us about
anything that’s going on in MN or anything else you think our listeners need to
know about on your front.

Nancy: I don’t know if MN itself is in a
particularly good or bad place, we did have one Prenda case that’s come up here and there’s been some weird developments with how
that’s proceeded procedurally. Proceeded procedurally,
oh well, that was a very lawyerd thing to say. In the
world of education and libraries and how we deal with copyright, there are a
lot of interesting and kind of pressing issues. There’s been a lot of
discussion in congress lately about copyright reform, and the copyright office
has been inviting lots of commentary on things. One of the topics that they’ve
invited commentary on is this problem of orphan works, and I don’t know if
you’re familiar with that, but that’s from the perspective of libraries, orphan
works have a pretty specific definition. It’s works for whom no author can be
found. No rights holder can be found. And the most common situation where we’re
dealing with those is archival material. You know, the author died in 1974 and
then their son inherited it and we don’t know where the son went, and the son
seems to have died in 1989 and who inherited it after that? There’s been a lot
of commentary on this. There was a proposed legislation a few years ago that
failed because there’s been a really really negative
response from independent photographers and illustrators, among others. And
right now there are comments open from the copyright office on that topic. So
we’re working to file on some of that. There’s also been just lots of different
hearings about how to reform copyright and all the new ways to reform copyright
and at least from the library world perspective, and I know, I’m not always
limited in my perspective all the time, we’re a little worried about how that’s
going to go because generally the voices that get heard the most on legislative
issues are the ones with the largest wallets and libraries and other public
interest issues do not have very big wallets behind them. So if copyright
reform is something that’s really on the table, that’s something that lots of people should be thinking of as a public interest issue. I
do take heart from the SOPA and PIPA protests, I do
think there are a lot of people who are more aware that copyright reform really
could be something that affects individual people in their daily lives in
negative ways. So I’m sort of hoping people are paying attention to that on a
democracy and public interest level.

Denise: It seems to me like more than ever they
are, but that doesn’t mean that we shouldn’t keep talking about it, because it
definitely is important for people to keep that on the front burner of their
attention. I’m realizing that I did not drop a second MCLE passphrase into the
show, so I’ll do that right now and I’m going to make it “notice and stay down”
back from our discussion on drop box. So that if you have to demonstrate that
you in fact listen to or watch our show, now you have two ways of showing that
yes, indeed you did. Evan it’s been great chatting with you as well. Lots of
Chicago stories in our rundown today. Hotbed of legal
developments there where you are.

Evan: Yeah well it’s a great place to be,
always interesting things going on. It was a pleasure to participate in the
conversation. With you about, Nancy, really nice to meet you.Like I said at the start of the show.Great to put a face with the twitter presence and look forward to
staying in touch.

Nancy: Thanks. I was really happy to be here.

Denise: Yes, and Evan and I are going to go off
and do some snacking now, go and find our Nature Box boxes and go nom nomnom. I really am, it’s right
over in the kitchen and it’s calling my name. Alright, everyone, we have so
enjoyed spending this time with you. We do this every Friday at 11 o’clock, if
you’d like to join us live. 11 o’clock Pacific time, 1800 UTC is when we record
the show live. You can jump into our IRC at
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in other ways that you can subscribe to This Week in Law head over to our show
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love hearing from you, in fact we really couldn’t do the show without your
suggestions and heads up for things that have caught your eye and guests that
you think would be interesting for us to talk to. so do get in touch with us, I’m denise@twit.tv, Evan is evan@twit.tv, we’re
both on twitter, I’m @dhowell over there, Evan is @internetcases there. And we have google + and Facebook
pages for the show, where it is a little more easy to have a conversation
though we do that on twitter as well. So we’re really glad that you could join
us, we look forward to seeing you next week on This Week in Law! And until
then, please take care, bye bye.